Donald Ray Seaux, Sr., Et Ux. v. Dr. Juan Paredes

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1186

DONALD RAY SEAUX, SR., ET UX.

VERSUS

DR. JUAN PAREDES, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2006-2136
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of John D. Saunders, James T. Genovese, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Michael W. Adley
Marc W. Judice
Judice and Adley (A Professional Law Corporation)
P. O. Drawer 51769
Lafayette, LA 70505-1769
(337) 235-2405
COUNSEL FOR DEFENDANT/APPELLEE:
Dr. Robert Theard

Jeffery F. Speer
Doucet-Speer
A Professional Law Corporation
P. O. Drawer 4303
Lafayette, LA 70502-4303
(337) 232-0405
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Donald Ray Seaux, Sr.
Belle Seaux

Benjamin Paul Mouton
McGlynn, Glisson & Koch
P. O. Box 1909
Baton Rouge, LA 70821
(225) 344-3555
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Donald Ray Seaux, Sr.
Belle Seaux

Julian Louis Gibbens, III
Attorney at Law
P. O. Box 90290
Lafayette, LA 705009
(337) 235-8815
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Donald Ray Seaux, Sr.
Belle Seaux

GREMILLION, Judge.

Donald Ray Seaux, Sr. and his wife, Belle Seaux, appeal the judgment of the

trial court that dismissed their demands against Dr. Robert Theard on an exception

of prescription. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Seaux entered Our Lady of Lourdes Regional Medical Center (Lourdes)

in Lafayette on July 2, 2002, with complaints of stomach pain and vomiting. He

was diagnosed with a gallbladder dysfunction and scheduled for a laparoscopic

cholecystectomy to remove the gallbladder. However, his physician, Dr. Juan

Paredes, determined that a laparoscopic procedure was not appropriate and

performed an open cholecystectomy, which involved incising across a large area of

Mr. Seaux‘s abdomen. The larger incision, of course, resulted in greater post-

operative pain, so the anesthesiologist, Dr. Robert Theard, prescribed a patient-

controlled analgesic morphine pump (PCA). The hospital order specified that the

PCA was to deliver a two-milligram dose. It would ―lock out‖ for six minutes

between doses and would only deliver forty milligrams in four hours.

On July 4, 2002, Mr. Seaux was found unresponsive. He was treated with

Narcan, which is utilized to reverse opiate effects. The Seauxs maintain that Mr.

Seaux sustained injury as a result of the overdose of morphine he received.

Mr. Seaux initiated a medical malpractice claim by filing a complaint with

the Patient‘s Compensation Oversight Board (PCOB) on May 13, 2003. His wife

was not included as a party to that complaint. In his initial complaint, Mr. Seaux

named only Lourdes. On June 7, 2004, he supplemented and amended his

complaint to add Drs. Paredes and Theard. Mr. Seaux alleged that Dr. Theard

failed to note that Mr. Seaux indicated in his admission papers that he was allergic

to codeine, which he alleged was of the same opiate family as the morphine he was

prescribed.

A medical review panel found that neither Lourdes, Dr. Paredes, nor Dr.

Theard breached the applicable standards of care owed to Mr. Seaux. That opinion

was rendered on February 15, 2006. The Seauxs filed their petition for damages in

which they named as defendants Lourdes, Dr. Paredes, and Dr. Theard in the

Fifteenth Judicial District Court on April 28, 2006.

Dr. Paredes filed a motion for summary judgment that the trial court granted

in a judgment dated January 3, 2013. Lourdes filed a motion for summary

judgment that was granted by the trial court on February 3, 2014.

After Lourdes was dismissed from the suit, Dr. Theard filed an exception of

prescription or motion for summary judgment in the alternative. There were two

main contentions in the exception/motion: Mrs. Seaux‘s claim was prescribed

because she was never a party to the complaint filed with the PCOB, and Mr.

Seaux‘s claim is prescribed because it was not timely sought against Dr. Theard.

The hearing on the exception/motion was held on August 4, 2015. Dr. Theard

introduced into evidence the records from Lourdes, including the anesthesia

records from Mr. Seaux‘s chart, which demonstrate that Dr. Theard was clearly the

anesthesiologist of record in Mr. Seaux‘s case from the start; thus, there was no

confusion over who was responsible for the prescription of the PCA. The Seauxs

argued that it was not until they retained an expert, Dr. Glen Atlas, who opined that

Mr. Seaux had been prescribed a larger dose of morphine than he should have, that

they discovered Dr. Theard‘s act, omission, or neglect. That exception was

granted by the trial court on August 17, 2015, on the basis that the medical records

in the Seaux‘s possession informed them of Dr. Theard‘s involvement in the case

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such that they should have known to pursue their demand against him within one

year of that act, omission, or neglect. It is from this judgment that the current

appeal was taken.

ASSIGNMENT OF ERROR

The Seauxs contend that the trial court erred in granting the peremptory

exception of prescription.

ANALYSIS

The prescriptive period in medical malpractice claims is established in

La.R.S. 9:5628, which provides a one-year prescriptive period that commences on

the date of the alleged act, omission, or neglect, or within one year of the discovery

of such act, omission, or neglect. The statute also provides, ―[H]owever, even as to

claims filed within one year from the date of discovery, in all events such claims

shall be filed at the latest within a period of three years from the date of the alleged

act, omission, or neglect.‖

All medical malpractice claims against qualified healthcare providers (QHP),

as defined in La.R.S. 40:1231.1, must be submitted to a medical review panel.

La.R.S. 40:1231.8. Subsection (A)(2)(a) provides:

The filing of the request for a review of a claim shall suspend
the time within which suit must be instituted, in accordance with this
Part, until ninety days following notification, by certified mail, as
provided in Subsection J of this Section, to the claimant or his
attorney of the issuance of the opinion by the medical review panel, in
the case of those health care providers covered by this Part, or in the
case of a health care provider against whom a claim has been filed
under the provisions of this Part, but who has not qualified under this
Part, until ninety days following notification by certified mail to the
claimant or his attorney by the board that the health care provider is
not covered by this Part. The filing of a request for review of a claim
shall suspend the running of prescription against all joint and solidary
obligors, and all joint tortfeasors, including but not limited to health
care providers, both qualified and not qualified, to the same extent
that prescription is suspended against the party or parties that are the

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subject of the request for review. Filing a request for review of a
malpractice claim as required by this Section with any agency or
entity other than the division of administration shall not suspend or
interrupt the running of prescription. All requests for review of a
malpractice claim identifying additional health care providers shall
also be filed with the division of administration.

Even if QHPs are not named in the initial request for a medical review panel,

that request suspends prescription against them to the same extent as it does for

those that are named, if they are joint tortfeasors. Williams v. Northgate Hosp., 98-

1477, (La.App. 3 Cir. 5/5/99), 734 So.2d 1251, writ denied, 99-1588 (La. 9/17/99),

747 So.2d 565.

Williams involved a hospital that was not a QHP and a doctor who was. The

plaintiffs requested a medical review panel as to both the hospital and doctor, and

were informed by the PCOB that it would not consider the claim against the

hospital. Plaintiffs then pursued their claim against the doctor through the panel

process, then filed suit against both the hospital and the doctor after the panel‘s

opinion was rendered. The doctor was dismissed from the suit on summary

judgment, and the hospital then filed an exception of prescription, arguing that the

suspension of prescription against the doctor did not also suspend it against the

hospital because the summary judgment that absolved the doctor of liability

precluded the possibility that he and the hospital were joint tortfeasors. The trial

court denied the hospital‘s exception, and the hospital sought writs of review.

After the Louisiana Supreme Court remanded the case to this court,1 we held that

because the doctor against whom the claim was timely pursued was found to not be

liable to plaintiffs, prescription against the hospital had not been suspended.

1
Williams v. Northgate Hosp., 98-2931 (La. 1/15/99), 735 So.2d 644.

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Thus, because the Seauxs initiated their claim more than a year after the

alleged act, omission, or neglect, and because Lourdes is not a joint tortfeasor with

Dr. Theard, their claim against him is prescribed unless their claim was brought

within one year of their discovery of his act, omission, or neglect. The ―discovery‖

rule in prescription cases focuses on the question of when a claimant should

objectively have discovered the act, omission, or neglect through reasonable

diligence. Braud v. Cenac, 03-1696 (La.App. 3 Cir. 7/14/04), 879 So.2d 896, writ

denied, 04-2101 (La. 11/15/04), 887 So.2d 484. The trial court ruled that the

Seauxs should have known of Dr. Theard‘s participation in the prescription of the

PCA at the time they received the medical records on which Mr. Seaux based his

claim against Lourdes.

When evidence is adduced at the hearing of an exception of prescription, the

trial court‘s findings of fact are reviewed under the manifest error standard. Arton

v. Tedesco, 14-1281 (La.App. 3 Cir. 4/29/15), 176 So.3d 1124, writ denied, 15-

1065 (La. 9/11/15), 176 So.3d 1043. ―The party pleading the exception of

prescription bears the burden of proof unless it is apparent on the face of the

pleadings that the claim is prescribed, in which case the plaintiff must prove that it

is not.‖ Id. at 1128.

[T]he issue to be resolved by a reviewing court is not whether
the trier of fact was right or wrong, but whether the factfinder‘s
conclusion was a reasonable one. See generally, Cosse v. Allen-
Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579
So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d
1106, 1112 (La.1990). Even though an appellate court may feel its
own evaluations and inferences are more reasonable than the
factfinder‘s, reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review where conflict
exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989);
Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where
documents or objective evidence so contradict the witness‘s story, or
the story itself is so internally inconsistent or implausible on its face,

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that a reasonable factfinder would not credit the witness‘s story, the
court of appeal may find manifest error or clear wrongness even in a
finding purportedly based upon a credibility determination. Rosell,
549 So.2d at 844-45. Nonetheless, this Court has emphasized that ―the
reviewing court must always keep in mind that ‗if the trial court or
jury‘s findings are reasonable in light of the record reviewed in its
entirety, the court of appeal may not reverse, even if convinced that
had it been sitting as the trier of fact, it would have weighed the
evidence differently.‘‖ Housley v. Cerise, 579 So.2d 973 (La.1991)
(quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112
(La.1990)).

Stobart v. State through Dep't of Transp. & Dev., 617 So.2d 880, 882-83

(La.1993).

The record clearly reflects Dr. Theard‘s participation in the prescribing of

the PCA, including the dosage to be given, the dosage intervals, and the maximum

four-hour dosage. The records reflecting these facts were available to and in the

possession of the Seauxs well before the complaint was filed with the PCOB.

Because the initial complaint was filed only against Lourdes, which was not a joint

tortfeasor with Dr. Theard, the claim was not pursued against Dr. Theard timely.

The judgment of the trial court is affirmed. All costs of this appeal are taxed

to Plaintiffs/Appellants, Donald Ray Seaux, Sr. and Belle Seaux.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform

Rules—Courts of Appeal, Rule 2–16.3.

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